Major Relinquished Children And Adoption Update 2021
Good morning and welcome everybody. My name is softer, Mahmoud, I'm very pleased to welcome you to today's session through data law. This is a new course that are put together where I'm going to be going through this area surrounding placement for adoption and adoption of relinquished Children and really looking at the issues of learning when is the father and also extended family members to be notified. So a bit of a quite a unique and interesting question. Of course many of us will sometimes have to deal with when we're dealing with this specialist part of public child care proceedings and therefore hence why I wanted to put this session together for you. So The discourse is split up into two sessions, sessions one and two. each one is approximately 30 minutes in length. And my aim damage to go through some of the key developments in so far as this area is concerned. So there's been a fair bit of case law surrounding this area and this is where some of you who work in public child care proceedings and particularly care and adoption footings will be needed to therefore be aware of at the, not just a statutory provision, but also a case law developments insofar as this matter is concerned. So, I've been going through elements of part 19 of the family procedures of 2010 in particular with you as well as the developing case law insofar as this is concerned. So like say it's going to be looking at the situations whereby mother and sometimes a father may wish to relinquish their child for adoption. And then the issue is to what extent muster local authorities should the local authorities be informing father in appropriate cases and also other family members, whether it's the maternal and paternal side of the family. So that's what we've been looking at. Okay. And I'm looking at the law as of october 2021 and as always, like normally with all these courses, I have acknowledged crown copyright and also def as a corporate author. Right? So what I want to start with is just just to put this into context before we start looking at some of the case law and that is as a founder practitioner myself. Sometimes you'll find that both lawyers and indeed those who we are representing will be unclear about where the necessary regulations are contained, stipulating the position with dealing with matters whereby Children are going to be relinquished for adoption. So the first place to look at really is the adoption agencies regulations 2000 and five. Now we've got The adoption issues raised 2005 years have been amended. There's the ones in Wales. That is the ones in England of 2005. These particular ones have just referred to other ones in England and you've got the corresponding ones in Wales and in particular schedule Two of these adoption agencies regs of 2005, Regulation 20, which sets out the position. So just to put this into context, let's say I was representing the local authorities and social work was to ring me and was to inform me that they have had mother who has recently given birth to a child. Ah Local authorities are not involved in care proceedings but what you've got is the mother who is for whatever reason wanting to give her baby up for adoption and like so you're not in proceedings. And the question then is how far does the social worker going so far as well accepting mother's consent for one thing, can the social to accept that should that can certainly given to any other person? What's the legal status of that child at this stage? What's the position would identify the family members such as for example, a father and extended family members in that regard. Where do we go with that? And can mother's consent? Whoever it's going to be provided to even be accepted? Well what should your two provides is this if the mother is looking to consent in these circumstances first and foremost, I would suggest touch, she effectively is agreeing to Section 20 other Children. Now the Welsh equivalent some of you will know those will be practicing in Wales will be the social services and well being Wales act of 2014 and you've got section 76, there which is the improvement of section 20 after Children for those of you practicing in England. And this is where for example, you've got The mother who would be ordinarily invited to sign the section 20 technically it's not a consent technically it's not it's her not objecting to local authority accommodating. So she would be invited to Provide the consent via section 20 subsection four Whereby the local authority would be looking then to accommodate the child in those circumstances where that's like saying content consent his forthcoming by the mother. Obviously the social worker has to be satisfied that the mother is in a position to consent. She understands what the concept means, she has consider the implications of that. So we're back to satisfying oneself that consent is viable. Mother can of course, for a few. Section 20 subsection seven she can withdraw and in Section 20 subsection eight, you can require for a child to be returned to her immediately. So we've got those provisions. But what if she has provided that consent then this is where the social workers expectation that is to go to the next level, which is they should be referring the child's case to adoption panel. So that's the next thing. There is a requirement here under the adoption agency Regulations 2005 to refer the child's case of adoption panel if indeed the plan is going to be one of adoption. So that is still a very significant part of panel, even though since september 2012 many of you will be aware that if proceedings are ordering in court matters demetrius order in court. Mother is not consenting noise. Perhaps father would pr then local authorities are not required to refer that child's case of adoption panel but instead take the child's case directly to the ADM for approval to pursue a placement order. But here because the mother is purporting to seek to consent her child being placed for adoption and therefore is effectively relinquishing the child who is a requirement to refer the child's case adoption panel to deceit that recommendation under Regulation 18 as to whether or not a child it is suitable to be placed for adoption. And in any recommendation will then go to the agency decision decision maker inviting him or her to decide whether to ratify that recommendation or not. Okay, so that's that part. But the other part that the social worker would need to be advised on is this provision here where they need to be providing to Kafka's or Kafka's coming in Wales Of course. First and foremost, a certified copy of the chance for lead birth certificates. Obviously very important to get that if the mother is and not able to prepare to register child's best of course. This Is where the local authorities should be doing so within 40 two days of the child's birth. So certified copy to child's birth certificate should be provided to Kafka's the name and address all the parents and legal guardians who are willing to consent of course. If mother is agreeable to consenting and father has parental responsibility as well, which you may have acquired through marriage to super partnership through joint registration on a trans birth certificate for example Danny and all circumstances. Of course he's consent would be required as well. It wouldn't be sufficient just to accept mothers consent in those circumstances and also cast cast need to be informed of a chronology of actions and decisions taken by the local authority. So what have you done? What steps undertaken to liaise with mother and father in those circumstances? It can see those are some of the key issues which would need to be put together for benefit of caffe casa. Furthermore, you've then got the further expectations here whereby there has to be confirmation that the adoption agency has canceled and explain to the parent legal implications of consent replacement and provided a parent which information so the mother and example of bin giving you need local authority needs to be able to satisfy calf gas when they make the referral to them that the local authority have insofar as is possible and practical in the circumstances cancel the mother made sure that they are satisfied actually understands what consenting to placement for adoption means, given the legal implications of what adoption is and thereafter in terms of contact and potential revocation and also such other information as a parent or other information the agency considers katha gas may need to know. So obviously setting out specifically what mothers reasons are for wishing to place a child for adoption. What other reasons for not informing the father were not informed the extended family members so that those considerations can then be given too tough customer. So like side the welsh equivalent then is scheduled to adoption agencies Wales Regulations 2005, Regulation 20 subsection. So you've got the similar provisions there. So this is the processing. So far as the regulations are concerned, let's now look at some of the developing case law surrounding Children who made and have been who may then have been or intended by the mother and sometimes the father to be relinquished for adoption. And I want you to start with this case of who we see this High court decision, family division of the High Court by Mr Justice Cohen on the 6th of November 2019 20 18. And in this particular this case involved a child who was six months of age and the local authority had large daycare application. The mother had in fact relinquished the child at birth and the local authority had lodged a care application where a child was some 2.5 months old. And there was, it was a case where by the local thought had put together the threshold and the issue was principally as to whether or not to inform the birth father of the child as well as to inform the extended family under father size sort of botanical paternal side of the the family. Now, the particular circumstances of this case were these mother When she gave birth was only 14 years of age. And she said when after she gave birth, she said that she had in fact been unaware that she was pregnant to her waters broke and judge was satisfied that both practically emotionally, she was completely unprepared for the person. The father of the child was a year Altering the mother. So he was 15 and he attended the same school as the mother and also the mother's brother and the child came as a surprised mother. She likes Asian, even though she was expecting obviously came as a surprise to the family also. And this is where the mothers family herself that themselves knew about that the fact that she's obviously had the baby. And what's very significant here in particular would suggest is this wasn't a case whereby the maternal side of the family were unaware in fact quite the contrary. So you can see that the maternal family knew about the position now and both the mother and the maternal family thought that mother could not care for the child and the charge should be adopted. Now, what's important to note is when you have these cases sometimes, as we'll see later, there can be pressure of course, born upon the the mother and sometimes a father in the circumstances from family. Friends, cultural pressures sometimes to hand the baby over for adoption and therefore in consent, that's given on that basis for the purpose of Section 19. section 20 of the adoption of Children in 2002 would not be consents, which therefore can be accepted on that basis because they are conditional unequivocal or they are not a true consent. But here on the fact his lordship was satisfied that in fact the decision to place a child for adoption and had a baby or for adoption was one taken by the mother independently, but with the support of but without the pressure from her family. So I think that's very, very important. So therefore it was an informed consent and one which the mother was very clear about. And in terms of the relationship with his mother had with the child's father. Paragraph, television judgment says that the relationship was such that today it was very short lived. In fact, it was only on two occasions that she said that they had had sexual intercourse and he split it up, split up very soon after the second time that they had they had intercourse. And the mother said that she was unaware that she was pregnant. Her body shape change in any way she claimed her due to her pregnancy. So she said she was unaware of this fact until obviously her waters broke and she became aware that she was give birth. As for the father, he had no idea whatsoever, nor did his family of the existence of the child. And therefore like say the big question was should the father and should be extended family members on the paternal side be notified. Now, as I said, the mother herself was 14 when she gave birth. and the question then 1st and foremost of course is can she consent? Well the answer is yes. You can Even a child under 16 can consent through the Gillick principles if they have a sufficient degree of understanding and intelligence and they can think through and follow through the consequences of their decision as to whether to consent to her child being placed for adoption. So in law it is possible of course her mother to consent to her child not only being placed for adoption under the auspices of Part 19 of the adoption of Children Act 2002, but also furthermore she can consent to the advanced adoption. So the advanced consent for the purpose of section 20 where she can in law I consent to her child actually subsequently being adopted. So this is where to determine mother's capacity. She was seen by clinical psychologist and the psychologist was satisfied mother did have capacity, she did have mental capacity and she was able to fully engage in the proceedings, give instructions and she had ability whereby she was able to engage in the proceedings. She had mental capacity. This wasn't the case. We needed litigation friend for mother and later was confirmed that she also had a capacity to consent to the adoption as well. So really one of the big questions that was needed to be considered here is what we're mothers reasons for not wanting to inform the garden. He started a family. Well, it was one which surrounded very much a potential risk, physical risk, risk of physical harm to mother and indeed potentially the child and also a risk of being ostracized, ostracized from the school, from the community. And also the potential pressure that would be placed upon her given her particular situation in her life at that stage. And as the mother described it, she said that if word got out that she had had a baby life would change. You would have a place. She was worried that the father would harass her and her family if he was to find out, mother was very concerned that the father may physically harm her. He had a history of anti social behavior and criminal behavior. He had been violently mother, There wasn't any evidence that the status suggest that, but there were threats in the past. Mother was very worried that once he became aware that he was the child's father, he would turn violent and caused problems for her. And also for her side of the family. So she was concerned about that he might physically harm her. And like so he did have a bad history of antisocial criminal behavior. Mother was also concerned about the fact that she would lose her privacy because other people at the school to find out this information would then be known to the community and it would be very difficult for her to continue with the study. She was only 15 at the time. She was obviously wanted to get ready for G. C. S. E. S. And her ability to study to achieve grades to achieve certainly grades degrade she wanted with a view to obviously progressing simply be traumatic and simply not be possible for her. And the the expert who saw her to counselor who the local authority than ours was looked to consider mother said that she was actually even suffering from post traumatic stress disorder. She was that worried about the consequences of the father's side of the family and her father finding out. And she was in fact he even prince prescribed anti depressants in the circumstances. And mother did say that there were also further difficulties into so far is the relationship between mother and her own brother deteriorated because of all the fact that she had given birth. So again, there were those ramifications there. Now. The question of course the court had been, was this if the Paterno family are not told that would lead to no placement with them. Of course that's the reality of it. So that if of course the paternal side of family are not told, then they are not going to be assessed. They're not going to be coming forward. And therefore there's no placement of the child with them in those circumstances. And that could then potentially to anger within the paternal family towards a maternal family. Because the child wouldn't be placed with a paternal side of the family because they weren't even told, it weren't even given the opportunity to come forward and potentially be assessed. And therefore that could cause further difficulties as well. So what is actually known about the father in this case? Well, this is where the local authority had made some inquiries to ascertain the position with the father and what the court was satisfied on what certainly, what a local I thought he was satisfied on is that ah the local authority on knew about the father insofar as what the maternal family had said about him. And also what the social services records had in fact identified and in particular what the court was satisfied on his, what the local authorities are, they were satisfied in is that the father, we started falling out with his own mother. He had been violent to her. It was found he had been abusing substances. He had been abusing alcohol and drugs. He had poor mental health will be referred at two camps. He had been reporters carrying a knife and he had been suspended from school. There had been police concerned reports and he had been involved in criminal damage. So there was an offending history there and therefore some of the mother's concerns in relation to the potential risk of violence towards her. one couldn't see that given father's criminal behavior and offending behavior can see that the potential risk is there. And there was also concerns in relation to uses of drugs by father's side of the family as well. So there was always concerns Father's mother herself had longstanding mental health issues. So it really the big question which the local authority had here and they need to ask themselves, was placement with the father or paternal family. Even realistic, and in fact, his lordship said that one had to therefore look at as to whether we're going to be all the local authority is going to be expected to inform the paternal side of the family. And indeed, father. One has to look see how realistic or otherwise it is as to the likelihood of a child being placed with family always or father himself and came for the child. And in fact, all professionals including the Guardian took the view that the chance of any assessment on the father of the family was going to be very low and that You'll find was one of the key aspects that the court, I need to ask themselves in looking to see whether or not. In fact they should also be informed and not in the circumstances. Now, what the court did say is, what about the rest of the paternal family and the court did say that the question of the extent of paternal family was relevant in two contexts. One the ability otherwise to obviously provide a home for a child, i. E. If we do inform them, then there's a need for an assessment. And are they going to be successful in that way? The beauty having a child placed with them. But the other key reason as to whether or not to inform the paternal family was for the purpose of life story of course, and with therefore whether speaking to mother, speaking to her side of the family of maternal family, there was sufficient knowledge for the local authority to be presented with information so as to help the chance for life story work as a child if the child was adopted and then grew up to then give the child details about his paternal side of the family was a sufficient information for perhaps a life story and for a later life letter, which doesn't give, which would then ordinarily be given to an adolescent adopted child in the circumstances. And of course, by contacting a pattern of family, there was more opportunity than to be able to provide more detailed information have to the child as a child grew up in so far as the chancer background and paternal side of family. So, there are two very important reasons why one was needed to contemplate informing the paternal family in that regard. The other big question that his lordship did ask, which is obviously a very, very significant one, is this does the fact that the parents here, the mother who was 14 when she gave birth, father who was 15 at a time. Does it put them in a separate category from other parents who give birth who are adults, for example. And his lordship did ask that question. And Apollo 13, Lordship did say that should we be looking at any different? For example, is there a particular, almost heightened form of consent or requirements that we need to consider? His lordship said No, he said, where the parents themselves are Children? That doesn't necessarily put them in any special category? His lordship didn't feel that that was the case. And in fact, As I mentioned earlier, a child under 16 can subject to Gillick Principles. Of course, your consent charming place for adoption amongst other matters. So therefore, I would suggest that perhaps if there was any special category may actually lead to potentially discrimination argument there. So, so you can see his lordship was obviously taking the appropriate step in so far as that's concerned. Now, this is where his lordship did refer them to the leading judgments in these matters related to Children who have been relinquished for adoption. And his lordship in particular referred to previous judgments particularly by Mr Justice Cobb in the case of re a and also in the case of Jalen A 2016, which went through similar issues. So, I think Children who are being relinquished for adoption and particularly if there is an international agreement there as well as the previous case. We Are a of 2016 re TJ of 2017 as well as M&M Twins relinquish babies of 20 18. And then the more recent case after that, which was the local authority against mother and another 2017. And these cases then very much then looked at the issue of Children who are relinquished for adoption. What parents reasons for wishing to give the baby up for adoption are and whether those were legitimate reasons to justify not, you're forming the father in appropriate cases and not informing the maternal and sometimes the paternal side their family. Of course, it's important to note that if, say in this case, for example, the mother did inform her father. And let's say he also wanted to relinquish the baby for adoption. If he's consent is required. If he had parental responsibility, then he's consent. It would also be required. Mother's consent wouldn't be sufficient for the purposes of Section 19 and section to any of the adoption of Children At 2002. His consent would also be acquired pursuant to the fact that he has pr but here, like I say, it was the fact that the mother didn't even wish the father to know either the circumstances. So what was the decision? What did the the judge ultimately decide what his lordship did take the view that on the facts here? His lordship said that the principle that the remedy sought by the mother was exceptional circumstances needed to justify that was exceptional. As I'm sure many of you will appreciate many of these cases. We do need to bear in mind. Obviously article eight, we need to bear in mind cases such as re b uh and maybe s in particular really be although as the previous JL case confirms is of limited relevance here. E the fact that when one looks at adoption, it's obviously exceptional when nothing else will do when all else fails budget, you'll be aware that and we be Lady Hale particularly emphasized that that's when you're looking at non consensual adoption. But here it's consensual adoption. So even though really be relevant not for reasons that sometimes people think because this is where the case of consensual adoption as a policy of non concerns. So it's important to bear that in mind. But obviously we bs is very important. One has to look at realistic options. We've obviously got article Aid. The Father's Article eight writes the article eight rights insofar as the paternal side of the family and therefore it so balancing exercise. And his lordship did say that in considering whether that test was met or not, one needs to conduct their for a holistic exercise. Either. Ebs in considering the circumstances and this including assessment of really what the paternal family were likely to be able to offer. And that's really what one has to be asking here. And his lordship did say that given a combination of all the factors and not the particular circumstances here, His lordship did not feel that it was appropriate for the father. Indeed, the paternal side of the family to be informed of the child's birth. To a number of concerns here, mother was very young. That in itself was an issue and therefore the effect upon her, not obviously, physically, but also mentally, psychologically. And obviously here, in terms of her neighborhood and family generally, and there was a real possibility that if word got out that she had this baby, it would affect her throughout the community, in terms of education, her friends, her livelihood in that regard, her education would be significantly affected in that regard. She was already vulnerable. She had a history of concerns over her mental health and she was at risk of potential harmful father of potentially physical harm in that regard and it would affect her stability. It would affect her relationship with the rest of her family. And his lordship was satisfied that there wasn't enough information here to suggest that even if the paternal side of family, a father and paternal family were informed that that there would be a possibility of placing with them, given what was known of them. So, on balance, his lordship said that this was a case where by the father and the Paterno family should not be informed. The fears were genuine or be speculative, but they couldn't really be dismissed in those circumstances. And there was no realistic prospect of placing with the paternal side of the family. In any event, some balance the the court took the view that the father and the paternal family should not be informed. Okay. So you can see it's a very, very important decision. This one. Now, I want to finish off today's talk. We're also looking at this other case with the artistic case of A. B. And C. D. And C. And really what this looks at is the other side, which is does one need to inform the child of their true identity. So even though this sort of private Children locates and it doesn't look at whether the father or paternal family otherwise should be informed, does emphasis the importance of making sure that a child of course is informed of their true identity. So this was a case by Mr. Justice going on two July 2019. And this was a case where by uh mother and father had been married, they were married for some 14 years. They had one child. And it was only when the child was older that the father discovered that in fact he was not the child's father ultimately wasn't the child's biological father. In fact the mother, the material time had been having an affair unknown to her father, which he felt to inform him about. And in fact she was aware that he was not the child's father, but for all those years he believed he was. And this led to divorce proceedings, financial relief proceedings, publication and taught of D. C. T. And my father were by the father sought to seek a relief on the mother on the base opportunity fraud when the DNA testing was done and it confirmed that he was not the child's biological father. One of the key questions of course the court needs to ask themselves, he's should the child be informed of the true parentage by the fact that her husband was not the chance. Father and the mother took the view that the charge should not be told to the father. Husband rather did say that he sought for the child to still be involved in his life. He still wanted to be heavily involved. He was the psychological father, even though he was at the biological father. And the father wanted the husband should say actually the husband wanted a child to be informed as to parentage as soon as possible. He was an interview that his identity was very important. He needed to know Whether this man was the father or not yet the right to know this was his fundamental right in the Article eight. And in fact, the mother took a different view. Her argument was that the fact that the child was still young, one should just wait until the child was older before the child was told about this and it wasn't the right time to tell the child. There was a lot of litigation between the parents here in that regard. The mother said, look, the only person who new was the husband in this case of the family members weren't even aware of this. So she took a different view on this. But in fact, the Guardian who was involved because There was a 16 four appointment here. So the child was joined as a party and hence had representation. The Guardian took a different view. The Guardian really sided with the husband here and took the view that the child should be informed as to his parentage as soon as possible. And in fact here, the Guardian took the view that there was an increasing concern uh that of the damaging effect of keeping secrets within families. And therefore it's important for Children to find out sooner rather later. This was a child who haven't yet gone through puberty and it was better to form the child before that stage. So that they will obviously have time then to reflect and consider what they had been told to rather than leaving it until later on where there could be a lot more difficulties than having to contend with obviously this major piece of news as well as obviously other changes as they go through their physical and emotional psychological changes through puberty and a husband also viewed as a child there from me to deny the true identity as soon as possible. So I said, a guardian very much took the view that there was this recognition of damaging impact of keeping secrets within a family about such fundamental matters and in fact the court did say that the child doesn't need to be told sooner rather than later in the circumstances. So the judge very much agreed with the guardian that the child was at an age would be there for him to accept this information at this stage rather than when the child was older. So the decision was made to inform the child accordingly. Okay, so that brings this session to an end. So you can see I've covered a fair bit with you so far going through some of the key issues surrounding relinquished Children in particular. We've looked at the position with the adoption of these regulations and requirements there. We've had a look at a couple of cases on this. What I'm going to be doing in the next part of the session is developing this further by taking it through a very significant case. The case of a B and C in particular, and also The use of part 19 Of the family procedures of 2010 Insofar as what the expectations are there. Thank you very much indeed for listening. And I speak to you very soon. Thank you very much. Bye for now.
33:16
